A Delicate Balance: Adopting the French Court of Cassation's Dual Criminality Interpretation

This Note recommends potential language to be added to various States’ criminal codes to incorporate the French Court of Cassation’s interpretation of the Dual Criminality requirement for prosecutions under universal jurisdiction. This recommendation stems from research into the concept of universal jurisdiction, leading to the discovery of the May 2023 Court of Cassation’s decision that created a pathway for countries to have jurisdiction over specific international crimes despite the crime being committed in another country. Specifically, this Note details the history of universal jurisdiction and its dual criminality requirement from the 17th century to modern times. Next, the Note details the development of the doctrine and the dual criminality requirement in France through an in depth look at different historic French cases invoking the doctrine to Article 689 of the French Criminal Code which outlines the universal jurisdiction and the dual criminality requirement for specific international crimes. This historical analysis culminates with the two French Court of Cassation’s decisions which created the interpretation at issue. Finally, this Note argues for the inclusion of a dual criminality requirement for all universal jurisdiction codes along with the addition of specific language allowing for States to prosecute individuals even if their crime is not penalized in the country of origin for the crime.